Statement made on 17 June 2010 by Senator Marie-P. Poulin (Charette)
Hon. Marie-P. Poulin:
Honourable senators, the issue presented in Bill C-232 is fundamental to our society, our legal system and its equal delivery of justice.
The amendment that would be made to the Supreme Court Act is relatively simple. It provides that those appointed as judges must be able to understand French and English without the assistance of an interpreter. In keeping with the practice of determining fairness, as the term is now used in the legal world, the question is this: is this bill reasonable? My answer is yes, it is reasonable.
Not only is it reasonable to ask the highest members of the judicial system to understand the country's two official languages, but this legislation, if it becomes law, would contribute to one of Canada's best qualities — a just society.
Please allow me to present a summary of my arguments.
Honourable senators, many arguments promote this bill. Permit me to provide a brief overview of a few.
First is the basic principle of the rule of law in Canada. This unwritten tradition can be traced back to the fields of Runnymede where, in 1215, the English nobles forced King John to sign the Magna Carta, thus agreeing to rule for all by the laws of the land. We have inherited this tradition that lead to government by consent of the governed.
In the late 1600s, the great English philosopher John Locke declared that the rule of law meant those who govern must do so: ". . . by declared and received laws . . . interpreted by known authorized judges." It was therefore seen that in fulfilling obligations of the rule of law, where everyone is equal before the law, our judges in the Supreme Court of Canada should have the capacity to understand what is said in their court directly to them by all interveners in English and in French.
That interveners in the Supreme Court of Canada address the judges directly — and never a jury — and that the same judges are responsible for the highest level of application of the rule of law make Bill C-232 an essential prerequisite to an appointment. Indeed, the Commissioner of Official Languages has said: "There is no higher court in Canada to decide on the nuance of legal meaning. Supreme Court judges need to know what the words mean."
Second, honourable senators, in our country, equality and fairness are already applied to drafting legislation. There is no translation per se. Our tradition is based on statute law. Bills are drafted simultaneously according to each judiciary system. Therefore, to be familiar with both languages in which the laws are equally drafted — neither language having dominance over the other — increases the clarity of a law. The R. v. Mack decision rendered in 2002 by the Supreme Court of Canada validates this reality. Honourable senators, many of us in this chamber, read both languages of some bills tabled in the Senate to ensure better comprehension.
This reality brings me to my third point. As we all know, our common law and our civil law judiciary systems have evolved side by side, each borrowing from the other over the years, although the two judicial systems are very different. Common law is borne out of precedents; civil law is essentially expressed through the written civil code.
As a result, it is essential that the final decision makers in the interpretation of our laws — our judges in the Supreme Court of Canada — are capable of fully understanding the nuances of both languages and even both systems. Legal scholarship in Canada includes training in both judicial systems and the ability to understand the language in which the jurisprudence and the civil code are written. Again, in the Official Language Commissioner's own words:
I have difficulty comprehending how one could boast "a lifetime of legal scholarship" without being able to understand Canada's jurisprudence in French."
Fourth, Bill C-232 is about fairness in the application of justice. It is evident to me that language is a major component in upholding that principle. As a former broadcast executive, I am keenly aware of the voice of a person — tone, level and rhythm. Often, it is a major factor to the success of a production, movie or radio show. As a lawyer, I am keenly aware that the use and comprehension of language is imperative to clear understanding. Without such clarity there is omnipresent danger of error through miscommunication.
The Dean of Civil Law at the University of Ottawa, Professor Sébastien Grammond, wrote:
Legal language is highly technical and cannot suffer from imprecision. . . . Lawyers who appear before the Supreme Court finely hone their arguments and rehearse several times. Each sentence is carefully crafted, especially as time is short. It is not too much to ask that judges understand all the subtlety and the nuance of what is being said in the language in which it is said.
Fifth, honourable senators, we all know that the calibre of judges at the Supreme Court of Canada should be second to none. Their legal knowledge, experience within the legal system, their reputation and their integrity are of utmost importance.
If they have these qualities, should our judges not also have the linguistic competencies to be able to understand all of the cases being tried before them? A resolution of the Canadian Bar Association, distributed to all its members on May 12, 2010, indicated that bilingualism should be considered as an important element of the merit criteria used in the selection of judges appointed to the Supreme Court.
Graham Fraser, the Commissioner of Official Languages, said:
Understanding both official languages must be among the qualifications required for these positions, because linguistic duality is one of Canada's most fundamental values.
Furthermore, Jean Leclair, professor of constitutional law at the University of Montreal, said that not only was this bill necessary from a symbolic point of view, but it was also simply a matter of competence. A unilingual judge has only a limited access to the vast corpus of legal commentary and knowledge in the other language.
Professor Leclair added that if an entire section of legal thinking or doctrine is inaccessible because the individual cannot consult those documents, then that is a huge problem.
Sixth, honourable senators, it has been pointed out that it takes decades for a lawyer to obtain the stature and renown needed to be considered as a candidate for Supreme Court justice.
During those years, a person would have had many opportunities and had access to a number of resources to learn a second language. Openings at the Supreme Court of Canada are rare. There are nine judges who are appointed until the age of 75. On average, a position opens up every five years. Lawyers certainly have enough time to adapt to the selection criteria they would have to meet.
A friend who specializes in learning told me that it is always possible to learn a language, but nearly impossible to acquire moral attributes such as the generosity, empathy and integrity required for this position. If that is true, then I think an experienced lawyer would be motivated to overcome any linguistic deficiency that stood in the way of a nomination.
In fact, learning another language is a reward in and of itself. I am sure that the men and women who practise law and aspire to sit on the Supreme Court one day would find that having access to so much more doctrine, case law and research, in English and French, adds greatly to their knowledge.
Finding qualified candidates across Canada will not be an obstacle. We already do it in the realms of politics and administration. Why would we be incapable of finding jurists, people who have a capacity for learning and are some of our leading minds?
My seventh and final point brings me to the Charter of Rights and Freedoms entrenched in the Constitution in 1982, which guarantees us the right to be heard in the official language of our choice. This assurance is found in section 19, which allows any person to use either English or French in any pleading in or process issuing from any court established by Parliament. In the spirit of the Charter, it seems to me that if litigants appearing before the Supreme Court of Canada have the right to use either language, then judges have a corresponding responsibility to ensure that litigants are heard and understood without benefit of an interpreter. The important word in what I just said is "understood."
The term used in the bill is "understanding." In a ruling handed down by the Manitoba Court of Appeal and cited by the Supreme Court of Canada, Chief Justice Monnin explains that there are four phases to the comprehension of a language: understanding of the written language; understanding of the spoken language; the ability to express oneself orally in the language; and the ability to write in the language. The chief justice says that it is not necessary for judges to qualify in the third or fourth phases, but it is essential that they understand the language.
Thus, it is surprising to hear people say that the bilingual requirement is unconstitutional because it discriminates against unilingual jurists.
This discrimination is justified by subsection 16(3), which stipulates that, although a provision is discriminatory, nothing in the Charter:
. . . limits the authority of Parliament. . . to advance the equality of status or use of English and French.
This clause allows the use of positive discrimination regarding language.
In an article printed recently in Lawyer's Weekly, the Dean of Civil Law at the University of Ottawa, Sébastien Grammond, said that the reform proposed in Bill C-232 is long overdue in a country that boasts about its bilingual character.
Honourable senators, I believe that these arguments in support of Bill C-232 speak for themselves. This bill is a reflection of Canada's linguistic duality and our bijural system. As parliamentarians, as sworn members of this upper chamber and as representatives of all regions of Canada and all of Canada's linguistic and cultural minorities, we must come together to affirm that it is unacceptable for Canada to be the only country in the world where its Supreme Court judges are not obligated to understand both official languages of the country.
No other country in the world would accept that its highest court does not speak the country's official language.
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